Equal Pay and Discrimination against Women

The Equal Pay Act (EPA) of 1963 is a federal law which prohibits pay discrimination on the basis of gender. The EPA is an amendment to the Fair Labor Standards Act and was enacted to rectify the pay inequity that existed (and still persists today) between men and women who perform the same job duties.

Title VII of the Civil Rights Act was passed one year after the EPA, and expanded workers' rights with respect to discrimination in the workplace. While the EPA only addressed pay discrimination between men and women, Title VII prohibits all forms of employment discrimination (for promotions, hiring, firing, wages, etc. ) based on race, religion, national origin and gender.

The requirements for filing and the remedies provided by the EPA and Title VII differ (more on this below), so if you are considering filing under either the EPA or Title VII, or both, you should contact an attorney with whom you can discuss the facts of your case.

The Equal Pay Act

The EPA prohibits discrimination on the basis of sex in the payment of wages or benefits, where men and women perform work of similar skill, effort, and responsibility for the same employer under similar working conditions. The EPA governs the conduct of all employers--federal, state, and local governments as well as private employers.

Proving a Claim

To bring a claim under the EPA, the employee must show that:

a man and a woman;

working at the same place; and

doing the substantially the same job (equal work) and receiving unequal pay.

It is the filing employee's burden to prove these requirements. The third element is obviously the most difficult to prove and will be covered below.

Once the employee proves her case, the burden of proof then shifts to the employer to disprove any of the three elements. Employers can justify a pay differential by proving the pay difference is the result of:

a seniority system;

a merit system;

a system which measures quantity or quality of work; or

any reason other than gender.

What Qualifies as Equal Work?

The job in question does not have to be identical, but rather needs to be substantially the same. Job descriptions and titles are irrelevant, what counts is the actual work being done. Under the EPA, two jobs are considered equal when they require equal levels of 1) skill, 2) effort, and 3) responsibility, and are performed under similar working conditions at the same worksite (generally).

While there is room for interpretation (and argument in litigation, obviously), this means that minor differences in skill, effort or responsibility will be disregarded and the jobs will generally still be considered the same. If one employee has extra skills or duties deemed important, however, it is legal for the employer to pay that employee more than a counterpart. If, on the other hand, employers consistently favor one gender in doling out these extra duties (and therefore, extra compensation), courts will look at these situations unfavorably.

How is Equal Pay Defined?

The EPA only requires that employees be paid at the same rate. Total compensation may be different based on productivity or quality of work.

In addition to equal wages, the EPA requires equal distribution of employment benefits such as health insurance, pensions, flex spending accounts, vacation time, bonuses, and any other fringe benefits.

Procedures for Filing an EPA Claim

EPA claims do not need to be filed with the Equal Employment Opportunity Commission (EEOC), unlike claims under Title VII (more below), but a provisional claim should be filed with the EEOC so that remedies under Title VII are not lost.

The statute of limitations for filing an EPA claim is two years for non-willful violations and three years for willful violations.

Title VII of the Civil Rights Act

Title VII is a broad anti-employment discrimination law which bars all forms of discrimination in the workplace - including gender, race, national origin and religion - in the hiring, firing promotion, and pay of employees. Title VII covers only employers who have employed 15 or more employees for at least 20 weeks in the previous and current calendar year.

Because Title VII is broader and encompasses the gender wage discrimination of the EPA, there are a great deal of crossover claims. A quick example: A female employee, who is Jewish, works at a car rental agency where females, who do the same job as their male counterparts, are paid $2 less per hour. Additionally, the company allows her Christian coworkers to observe Christmas at work, but she is not allowed to observe Hannukah. She would have an EPA claim for the gender wage discrimination and a Title VII claim for the gender wage discrimination and as well as for religious discrimination.

Procedures for Filing a Title VII Claim

Under Title VII, you must first file a complaint with the Equal Employment Opportunity Commission and the EEOC must grant you a "right to sue" letter before you can sue your employer in federal court.

You must file a Title VII claim within 180 days of the receipt of a paycheck which reflects the gender wage discrimination. This is the result of the Lily Ledbetter Fair Pay Act of 2009, which was the first piece of legislation signed into law by President Obama. This law supercedes a Supreme Court case which had ruled that the statute of limitations on a Title VII claim had to be filed within 180 days of the first agreement on pay rate between the employer and employee.

Filing EPA Claims vs. Title VII Claims

Where both the EPA and Title VII claims overlap, there are advantages and potential disadvantages to both.

Factors in favor of filing under the EPA:

no need to wait to file a complaint with the EEOC

if you work for a company with fewer than 15 employees you can sue under the EPA

EPA claims, unlike Title VII claims, do not need to prove the discrimination was intentional. Proving intent is difficult and makes EPA claims easier to win in court.

longer statute of limitations--two or three years (depending on whether the discrimination was willful or not) for EPA claims and 180 days for Title VII claims

Factors in favor of filing under Title VII:

the biggest advantage is you can win more money--not only can you recover lost wages, but you can seek money for pain and suffering.

Whether you choose to file under the EPA or Title VII, or both, you should be aware of the requirements for each, as well as the statutes of limitation. To investigate equal pay and gender discrimination issues, go to www.eeoc.gov as well as local and state fair employment agencies.